S (Children: Parentage and Jurisdiction): What does it mean for international families and for same-sex families?

The Court of Appeal handed down judgment in Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 on 27 July 2023 (you can read the full judgment here).  Mills & Reeve acted for Reunite International Child Abduction Centre (Reunite) who intervened in the appeal.  Nicola Rowlings, Professional Support Lawyer at Mills & Reeve speaks to Head of Fertility Colin Rogerson, who dealt with the case, about the case and its implications. 

Nicola: Can you tell us what the case was about?

Colin: The case concerned children of a family where all the children were British Citizens and they had all been conceived through artificial insemination at a fertility clinic.  The children were no longer living in England and were now habitually resident in a Gulf State.  The elder child was however attending school in England. 

There was an issue about whether the applicant, who had been the civil partner of the mother at the time of the fertility treatment, was a legal parent of the younger children. The trial judge had heard evidence and whilst he considered that they were “children of the family”, that he did not consider that the applicant had consented to the fertility treatment on the facts of this case. 

Entirely separate to the issue of parentage, was whether the applicant could use the English courts to make an application in respect of the children since they were not habitually resident in this country.  She argued, unsuccessfully at first instance, that the court had jurisdiction because there had been civil partnership dissolution proceedings in England and they were “connected” with the current application.  This was important because it was accepted that the applicant could not bring any application in relation to the children in the Gulf State where they live. 

Nicola: What was the outcome?

Colin: The Court of Appeal allowed the appeal on both grounds. The trial judge had been wrong to find that the applicant had not consented to the fertility treatment and that he should have found her to be a parent and also found that the judge was wrong to find that the courts of England and Wales do not have jurisdiction. 

In fairness to the trial judge, who is a highly experienced international children lawyer, since he gave his judgment in this case, the Court of Appeal disagreed with the approach he adopted prior to hearing this appeal.  Had he known that the Court of Appeal would have taken that view, he may have reached a different conclusion. 

Nicola: Were the two points – parentage and jurisdiction - linked?

Colin: No, and that is quite unusual in an appeal.  The appeal raised two separate points of law.  The parentage appeal point had no bearing on the jurisdiction point. 

Nicola: Why did Reunite intervene if this case didn’t concern an “abduction”?

Colin: Reunite is the UK’s leading charity dealing with international child abduction and the movement of children.  It runs an advice line for parents involved in international children cases as well as a specialist mediation service.  Reunite’s work isn’t limited to abduction work, and the issue relating to jurisdiction is relevant to much of Reunite’s work.  Reunite often intervenes in cases of public importance that fall within its experience. 

Nicola: On the issue of parentage – what was the issue?

Colin: In the UK we have a statute – the Human Fertilisation and Embryology Act 2008  - which applies to determine the legal parentage of a person who is conceived through artificial insemination.  The 2008 Act applies to all children where the “treatment” (artificial insemination) took place or after 6 April 2009.  In very broad terms, parentage applies under the 2008 Act like this:

• The woman who carries the child is the legal mother
• If the mother is married or in a civil partnership at the time of treatment, then her spouse or civil partner is the child’s second legal parent unless it can be shown that the spouse or civil partner did not consent to the artificial insemination
• If the mother is not married at the time of the insemination, but the treatment has taken place in a UK licensed fertility clinic, then a second parent may be agreed provided conditions are met. 

The issue in this case was whether the applicant had consented to the artificial insemination.  The trial judge heard extensive evidence in a hearing which lasted for four days.  The judge said he found the issue of consent to be finely balanced but that the applicant had not positively objected to the treatment but had not clearly consented. 

The trial judge based his decision on an approach adopted in a case called  Re G (Human Fertilisation and Embryology Act 2008) [2016] EWHC 729 (Fam) – where fertility treatment had been received by a same-sex couple where the gestational mother was separated from, but still in a civil partnership with, someone else.  Due to errors in the clinic forms, there became an issue as to whether the former partner was a legal parent or whether the intended partner could be declared to be a parent.  Those were very different facts but the judge in Re G adopted an approach which required more than a general awareness that treatment was taking place and that consent required a “deliberate exercise of choice".

In this appeal, the Court of Appeal considered that where there is an issue raised in relation to consent, the court must ask the question “Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?”

Nicola: What do you think this will mean for other families?

Colin: This case really highlighted a “universal issue” for many types of families made through artificial insemination – international recognition of their family.  There are no international conventions or regulations which create a system of recognising parentage across borders.  Just because your parentage is recognised in England does not mean it will be recognised in another country.  Attitudes towards same-sex relationships, let alone same-sex parents, are very different in the Middle East than they are in the UK. 

The Middle East also has a large international community and there will be other families in those countries and indeed in other countries, where local laws do not recognise their legal relationship with the children and this enables those litigants to seek to use the English courts to bring applications where the parties in the matrimonial or civil partnership proceedings are or were the parents of the child concerned (including a child of the family); that the matrimonial or civil partnership proceedings are taking place or did take place in England Wales and that one or other or both of the parents seek a child arrangements order.